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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. 07-SE-379
Side by Side, Inc. ) NAL/Acct. No. 200832100014
Toledo, Ohio ) FRN # 0005850862
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 28, 2008 Released: January 30, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Side by
Side, Inc. ("Side by Side"), former licensee of Ku Band earth station
E950401, apparently liable for a forfeiture in the amount of five
thousand two hundred dollars ($5,200) for operating its earth station
without Commission authority and for failing to file a timely renewal
application for its earth station in apparent willful and repeated
violation of Section 301 of the Communications Act of 1934, as amended
("Act") and Sections 25.102(a) and 25.121(e) of the Commission's Rules
("Rules").
II. background
2. On August 25, 1995, Side by Side was granted a license to operate the
fixed-satellite Ku Band earth station under call sign E950401. Under
the terms of its license, Side by Side's authorization for its Ku Band
earth station expired on August 25, 2005. On October 15, 2007, Side by
Side contacted the Commission's International Bureau ("IB") and
learned that the license for its satellite earth station had expired.
Thereafter, on October 17, 2007, Side by Side requested a special
temporary authority ("STA") to continue operations. On November 13,
2007, Side by Side submitted a new license application which IB
granted on December 26, 2007 under call sign E070261. IB then
dismissed the pending STA request.
3. Because it appeared that Side by Side operated earth station E950401
without authorization, IB referred this case to the Enforcement
Bureau's Spectrum Enforcement Division ("Division") for investigation
and possible enforcement action. The Division issued Side by Side a
letter of inquiry ("LOI") on November 2, 2007.
4. In its November 14, 2007 Response to the LOI, Side by Side admitted
that it failed to timely renew its earth station license and that it
continued to operate station E950401 without Commission authority
through October 15, 2007, because it was unaware of the expiration of
its license and the need to file a renewal. Side by Side stated that
it first became aware that its license had expired on October 15,
2007, at which time it took immediate steps to request an STA to
operate its station pending the submission and grant of a new license
application.
III. discussion
5. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under and in
accordance with a Commission granted authorization. Section 25.121(c)
of the Rules provides that the license term for an earth station is
specified in the instrument of authorization. Section 25.121(e) of the
Rules requires the licensee of an earth station to file its renewal
application "no earlier than 90 days, and no later than 30 days,
before the expiration date of the license." Absent a timely filed
renewal application, an earth station license automatically terminates
at the end of the license period.
6. Under the terms of its license, Side by Side's authorization to
operate earth station E950401 expired on August 25, 2005. Side by Side
admitted that it failed to file its renewal application during the
requisite 30-90 day period prior to August 25, 2005. Moreover, Side by
Side admitted that it continued to operate this station after the
expiration of its license on August 25, 2005-a situation that Side by
Side did not seek to remedy until October 17, 2007 when Side by Side
filed its request for an STA. Thus, it appears that Side by Side
violated Section 25.121(e) of the Rules by failing to timely file a
renewal application, and violated Section 301 of the Act and Section
25.102(a) of the Rules by continuing to operate its station without
Commission authority.
7. Section 503(b) of the Act and Section 1.80(a) of the Rules provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeated" means more than once. Based on the record before
us, it appears that Side by Side's violations of Section 301 of the
Act and Sections 25.102(a) and 25.121(e) of the Rules were willful and
repeated.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "the nature,
circumstances, extent and gravity of the violation, and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require." Having considered the statutory factors, as explained below,
we propose a total forfeiture of $5,200.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and $3,000 for
failure to file required forms or information. As the Commission has
held, a licensee's continued operations without authorization and its
failure to timely file a renewal application constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Side by Side's separate violations.
10. Consistent with precedent, we propose a forfeiture in the amount of
$1,500 for Side by Side's failure to timely file a renewal application
within the time period specified in Section 25.121(e) of the Rules.
Additionally, we propose a forfeiture in the amount of $5,000 for Side
by Side's unauthorized operation of earth station E950401 after August
25, 2005. In proposing a forfeiture of $5,000 for the station's
unauthorized operation, we recognize that the Commission considers a
licensee who operates a station with an expired license in better
stead than a pirate broadcaster who lacks prior authority, and thus
downwardly adjust the $10,000 base forfeiture amount accordingly.
Thus, we propose an aggregate forfeiture of $6,500 ($1,500 for failure
to timely file a renewal application and $5,000 for unauthorized
operation).
11. As a Commission licensee, Side by Side is charged with the
responsibility of knowing and complying with the terms of its
authorizations, the Act and the Rules. We do find, however, that a
downward adjustment of the proposed forfeiture from $6,500 to $5,200
is warranted because Side by Side made voluntary disclosures to
Commission staff and undertook corrective measures after learning of
its violations prior to any Commission inquiry or initiation of
enforcement action.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Side by Side, Inc. IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of five thousand two hundred dollars ($5,200) for the willful
and repeated violation of Section 301 of the Act and Sections
25.102(a) and 25.121(e) of the Commission's Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Side by Side, Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. Payment of the forfeiture must be made by credit card through the
Commission's Debt and Credit Management Center at (202) 418-1995, or
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. A request for full payment under an installment plan
should be sent to: Associate Managing Director-Financial Operations,
445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.
15. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Side by Side, Inc., Attention: Mr. Todd
Hostetler, 5115 Glendale Avenue, Toledo, Ohio 43614-1801, and its
counsel, A. Wray Fitch III, Esq., Gammon & Grange, P.C., Seventh
Floor, 8280 Greensboro Drive, McLean, Virginia 22102-3807.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
File No. SES-LIC-19950620-00796. Earth station E950401 was licensed to
Side by Side, Inc., d/b/a Yes Ministries.
47 U.S.C. S: 301.
47 C.F.R. S: S: 25.102(a) and 25.121(e).
File No. SES-STA-20071017-01428.
File No. SES-LIC-20071113-01562. Earth station E070261 was licensed to
Side by Side, Inc.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Todd Hostetler,
Side by Side, Inc. (November 2, 2007).
Letter from A. Wray Fitch III, Esq., Counsel for Side by Side, Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (November 14, 2007).
Id. at 1-2.
Id. at 1.
Id. at 2.
47 U.S.C. S: 301; 47 C.F.R. S: 25.102(a).
47 C.F.R. S: 25.121(c).
47 C.F.R. S: 25.121(e).
47 C.F.R. S: 25.161.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under Section 503(b) of the Act).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) ("Discussion Radio"). See
also La Carpa Corp., Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 2744, 2745 (Enf. Bur., Spectrum Enf. Div., 2007) (forfeiture paid)
("La Carpa"); Lazer Broadcasting Corp., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur., Spectrum Enf. Div., 2006)
(forfeiture paid) ("Lazer"); Shared Data Networks, LLC, Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 18184, 18186 (Enf. Bur., Spectrum
Enf. Div., 2005) (forfeiture paid) ("Shared Data Networks")
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
against a broadcaster for failure to timely file its renewal application);
La Carpa, 22 FCC Rcd at 2746 (proposing a $1,500 forfeiture against an
earth station operator for failure to timely file a renewal application);
Lazer, 21 FCC Rcd at 8712 (proposing a $1,500 forfeiture against an earth
station operator for failure to timely file a renewal application).
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), prohibits
assessment of a forfeiture for a violation that occurred more than one
year before the issuance of a NAL, but this section does not bar
consideration of prior conduct in determining the appropriate forfeiture
amount for violations that occurred within the one-year statutory period.
See Globcom, Inc. d/b/a Globcom Global Communications, Notice of Apparent
Liability for Forfeiture and Order, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000); Cate
Communications Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388
(1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC
2d 37, 37-38 (1967), recon. denied, 11 FCC Rcd 193 (1967).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a broadcast station for 14 months beyond the expiration of
its license); La Carpa, 22 FCC Rcd at 2746 (proposing a $5,000 forfeiture
for operating an earth station for three years after the expiration of its
license); Lazer, 21 FCC Rcd at 8712 (proposing a $5,000 forfeiture for
operating an earth station for one year after the expiration of its
license).
See Discussion Radio, 19 FCC Rcd at 7437. See also La Carpa, 22 FCC Rcd at
2746; Shared Data Networks, 20 FCC Rcd at 18187.
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur., 2004). See also Lazer, 21 FCC Rcd at 8712; Journal
Broadcasting Corp., Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div., 2005) (forfeiture paid).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-170
2
Federal Communications Commission DA 08-170